Lewandowski v. State

Decision Date17 May 1979
Docket NumberNo. 579S130,579S130
Citation389 N.E.2d 706,271 Ind. 4
PartiesRonald E. LEWANDOWSKI, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Max Cohen, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

This cause is before us upon the defendant's (appellant's) petition to transfer from the Court of Appeals, Third District, that Court having affirmed his conviction and sentence by an opinion authored by Judge Hoffman and published at 374 N.E.2d 566. We now grant transfer to correct a sentencing error.

The defendant was charged by information with two counts of delivery and one count of possession of a controlled substance, marijuana. The possession count was dismissed by the State on October 2, 1975.

A jury returned a verdict of guilty on each count of delivery of a controlled substance and imposed a penalty of five years on each count. Judgment was entered by the trial court on October 27, 1975, and the defendant was sentenced to a term of imprisonment of five years.

At the time the offense charged was alleged to have been committed, the applicable law made delivery of a Schedule I Controlled Substance punishable by imprisonment for a determinate period of time not less than five (5) nor more than twenty (20) years, Ind.Code 1971, 35-24.1-4-1.

That Act was amended by the Acts of 1974, P.L. 152, § 10, 653, et seq., was repealed by the Acts of 1975, P.L. 338, § 3, 1800 at 1805-1806, codified at Ind.Code 1971, 35-24.1-4.1-10, effective July 29, 1975.

The substance of the repeal and the amendment was to make unlawful dealing in marijuana in an amount less than 30 grams a misdemeanor punishable by a determinate term of not more than one year. The evidence in the case at bar is undisputed that the amount of marijuana delivered with respect to each count was less than 30 grams.

Under identical facts, the Court of Appeals in Maynard v. State, (1977) Ind.App., 367 N.E.2d 5, held that Maynard should have been sentenced under the amended statute. In so doing, it applied the logic of dicta from its earlier case of Dowdell v. State, Ind.App., 336 N.E.2d 699, 702 n.8. This question was not presented to the trial court as the Maynard case had not yet been decided. In Dowdell v. State, supra, Judge Staton indicated that the enactment of a ameliorative sentencing amendment was, in itself, a sufficient indication of the legislative intent that it be applied to all to whom such application would be possible and constitutional, thereby obviating application of the general savings statute, Ind.Code 1971, 1-1-5-1 (Burns Code Ed.). We are comfortable with that viewpoint, inasmuch as that statute is a general savings clause only, as opposed to those often appended to specific enactments, as in the case of the Revised Criminal Code of 1977. We are, therefore, in agreement with the holding in the Maynard case and hold that the defendant should have been sentenced in accordance with the decision therein. Under Kleinrichert v. State (1973) 260 Ind. 537, 297 N.E.2d 822, a sentencing error may be raised at any time; and we are not advised as to why the issue was not tendered to the Court of Appeals as newly discovered reviewable error. It was presented by the petition for rehearing but was not addressed by the court an error that we can only charge to judicial oversight.

With regard to the issues decided by the Court of Appeals, however, we approve and adopt the opinion as written by Judge Hoffman, as follows:

"Defendant-appellant Ronald E. Lewandowski was charged by information with two counts of delivery and one count of possession of a controlled substance, to-wit: marijuana. The possession count was dismissed by the State on October 2, 1975. A jury returned a verdict of guilty on each count of delivery of a controlled substance and fixed appellant's penalty at five years on each count. Judgment was entered thereon by the trial court on October 20, 1975. Following the denial of his motion to correct errors, appellant perfected this appeal presenting the following issues for our review:

"(1) Whether the trial court erred in failing to require the State to disclose the identity of the informant at trial;

"(2) Whether the State showed a proper chain of custody for admission of State's Exhibit No. 1;

"(3) Whether the evidence was sufficient to show probable cause to suspect that he was engaged in criminal activity; and

"(4) Whether the trial court erred in granting the State's motion in limine preventing appellant from mentioning that the penalty for the sale of marijuana had recently been changed.

" Appellant first contends that the trial court erred in failing to require the State to disclose the identity of the informant at trial. The general policy in this regard is one of nondisclosure of the informer's identity. McCulley v. State (1971), 257 Ind. 135, 272 N.E.2d 613; Collett v. State (1975), Ind.App., 338 N.E.2d 286. In Roviaro v. United States (1957), 353 U.S. 53, at 59, 77 S.Ct. 623, at 627, 1 L.Ed.2d 639, the United States Supreme Court said:

" 'What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz, 110 U.S. 311, 316, 4 S.Ct. 12, 14, 28 L.Ed. 158. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.'

"The privilege, however, is not without its limitations. Thus, the privilege yields in instances where disclosure of the informer's identity, or of the contents of his communication, is relevant and helpful to the defense of the accused or is essential to the fair determination of the cause, Roviaro v. United States, supra; McCulley v. State, supra; Collett v. State, supra; Garner v. State (1975), Ind.App., 325 N.E.2d 511; unless the State can show a paramount interest in nondisclosure or an unwarranted risk to the life of the informant. Collett v. State, supra; Garner v. State, supra.

"In Roviaro v. United States, supra, 353 U.S. at 62, 77 S.Ct. at 628-29, the court further stated:

" 'We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.'

" Since the State has the privilege to withhold the identity of an informer, the burden is upon the defendant seeking disclosure to demonstrate an exception to the privilege that the informer remain anonymous. United States v. Alvarez (9th Cir. 1973), 472 F.2d 111, Cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148; United States v. Alvarez (9th Cir. 1972) 469 F.2d 1065; State v. Cortman (1968), 251 Or. 566, 446 P.2d 681 (on rehearing); Cert. denied, 394 U.S. 951, 89 S.Ct. 1294, 22 L.Ed.2d 487; State v. Gill (1975), 22 Or.App. 484, 539 P.2d 1138; Doe v. State (1972), Fla.App., 262 So.2d 11, citing Treverrow v. State (1967), Fla., 194 So.2d 250; Gill v. State (1971), 11 Md.App. 593, 275 A.2d 505. Both Roviaro and the Indiana decisions implicitly recognize this burden on behalf of the defendant. And, it is only when this initial burden is met that the balancing of the respective interests of the State in nondisclosure and the defendant in marshalling a defense come into play.

"In the case at bar, appellant made two separate requests for the identity of the informant. The first request occurred during direct examination of Officer Charles Paul Franko. Officer Franko testified that on March 2, 1975, at approximately 12:30 A.M., he and an informant went to the residence of appellant. After entering the home, Officer Franko seated himself upon a cushion in appellant's living room. There a conversation took place between Officer Franko and appellant. In addition to appellant and Franko, the informant, two women and three men were present when the conversation took place. At this point in the direct examination of the witness, appellant was permitted to voir dire the witness for the purpose of making an objection.

" 'VOIR DIRE EXAMINATION BY MR. LYONS (FOR THE DEFENDANT)

"Q. Officer, do I correctly understand the conversation involved you and the defendant and the confidential informant?

"A. Yes sir.

"Q. What is the name of that confidential informant?

" 'MR. SUAREZ: (FOR THE STATE OF INDIANA)

'To which we're going to object Your Honor. The Law clearly states that the Officer, police enforcement agencies do not have to reveal the name of a confidential informant.

'MR. LYONS: Your Honor, I don't believe that to be a correct statement of the Law. I'm entitled to know that unless they can show a paramount interest in nondisclosure. At this point there has been no showing of paramount interest in nondisclosure.

'THE COURT: The objection (of the State) is sustained.'

"The second request for the identity of the informant occurred during the examination of the witness Patrick J. D. Soliday, a detective with the Porter County Sheriff's Department, who testified as to the circumstances underlying a second controlled purchase of marijuana from appellant. Officer Soliday testified that at...

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